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The U.S. Supreme Court on Monday dove into the high-stakes case on homelessness that originated in Oregon’s Grants Pass with justices struggling to figure out where to draw the line on how far cities can go to regulate how people sleep or camp in public spaces.

They also asked if the Supreme Court even needed to intervene in this case since Oregon in 2021 adopted its own state law that allowed for “objectively reasonable” time, place and manner limits on sitting, lying or sleeping outside.

During two-and-a-half hours of lively argument, conservative justices questioned why federal judges should weigh into municipal policy decisions. They wondered why those affected by camping ordinances in Grants Pass can’t raise the defense in state courts that their individual circumstances left them with nowhere else to sleep once they’re fined or charged with a crime, instead of seeking a broad ban on the city’s ordinances.

The liberal justices, in turn, hammered the city’s lawyer, who claimed that homelessness isn’t considered a status.

Attorney Theane D. Evangelis, representing Grants Pass, argued that the city’s laws punished the general conduct of sleeping outside in public places and not the status of being homeless.

The case arose when several homeless people filed suit in federal court against Grants Pass in 2018, alleging the city’s aggressive enforcement of its public camping and sleeping ordinances were intended to banish them from town. Police repeatedly told them to “move along” and then issued tickets that carried fines of several hundred dollars, park exclusions and then criminal trespass charges.

A federal district judge in Medford agreed, blocking the city from enforcing its public camping laws during the day without a 24-hour notice and stopping it from enforcing the rules at night. Then a divided 9th U.S. Circuit Court of Appeals barred the city from enforcing the laws, finding they criminalized the status of being homeless in violation of the Eighth Amendment’s ban on cruel and unusual punishment, and the city petitioned for the Supreme Court’s review.

The case has been touted as one of the most significant involving homelessness to come before the court in decades and could have significant reverberations around the country depending on how broadly or narrowly the Supreme Court rules.

Just before arguments began, hundreds of people rallied outside the Supreme Court building in Washington, D.C., and held a “sleep-in” on the sidewalk in front, lying on the ground under warming blankets to draw attention to the plight of homeless people. Others marched around the courthouse perimeter with chants, including, “When the homeless are under attack, what do we do? Stand up, fight back!” and “What do we want? Housing! When do we want it ? Now!”

Shortly after arguments got underway inside, Justice Elena Kagan directly asked the Grants Pass lawyer, “Could you criminalize the status of homelessness?

“I don’t think homelessness is a status like drug addiction,” Evangelis responded.

“Well, homelessness is a status,” Kagan continued. “It’s the status of not having a home.”

Kagan called sleeping a human necessity, adding, “It’s sort of like breathing.” She said she found the city’s stance “quite striking” and “off” track and that the Eighth Amendment is clear that it protects punishing people based on their status versus their conduct.

Evangelis said she disagreed, contending the status of homelessness is fluid.

All the justices appeared to struggle with the distinction between a person’s status and conduct in trying to draw a line to determine what’s “cruel and unusual punishment” under the Eighth Amendment.

The 9th Circuit’s rulings in the Grants case and a prior case in Boise rested on a constitutional principle from the 1962 U.S. Supreme Court decision in Robinson v. California, which found that the Eighth Amendment prohibits the government from punishing people based on their “condition or status.” In that case, a man could not be punished for being addicted to drugs, only for illegally using drugs.

Several justices lobbed hypotheticals at lawyers from both sides, asking if city laws barring urinating or defecating in public spaces would meet the constitutional threshold or whether breaking into a store to find food would be permitted if a homeless person needed to eat and didn’t have access to any other food to fulfill their basic human need.

“Whatever we decide here about the case is where to draw the line,” Justice Amy Coney Barrett said.

Deputy U.S. Solicitor General Edwin S. Kneedler said the Grants Pass laws went too far.

“If you can’t sleep, you can’t live, and, therefore, by prohibiting sleeping, the city is basically saying you cannot live in Grants Pass,” Kneedler said. “It’s the equivalent of banishment.”

But he urged the court to throw out the “involuntary homeless” class certification in the case and instead require cities and law enforcement officers to make individual assessments of whether people actually have nowhere else to stay before issuing any citations, fines, park exclusions or trespass arrests.

Evangelis, the attorney representing Grants Pass, said if recent 9th Circuit rulings from the Grants Pass and Boise cases are allowed to remain on the books, it would “bring chaos” with cities left “with no choice” but be “forced to give up all of their public spaces.”

She called it “hyperbole” that Grants Pass is seeking to push people out of the city, saying those who challenged the city’s laws have hung their hats on one person’s statement from a three-hour council meeting.

A decade ago, one City Council member discussed how to make it “uncomfortable enough ... in our city so they will want to move on down the road,” a quote cited by the lawyers who brought the case.

She argued that fines of several hundred dollars for sleeping in public are “low level” and that the jail times are short. “This is not unusual in any way. It certainly is not cruel,” Evangelis told the court.

When she argued there’s nothing in the Grants Pass laws that criminalizes homeless people and that the city laws are “generally applicable,” Justice Sonia Sotomayor interjected: “That’s what you say, but if you’re enforcing it only against the homeless” — and not against stargazers who bring a blanket to a park or sunbathers sleeping on a beach — that would make the Grants Pass ordinances a targeted punishment, Sotomayor said.

Evangelis argued that “the statute does not say anything about homeless.”

Chief Justice John G. Roberts Jr. said he and others were having difficulty trying to distinguish between what’s considered a status protected from criminalization under the Eighth Amendment versus someone’s conduct, such as drinking in public. If someone is homeless for one week but then finds shelter, can their status change, he asked.

“Why would you think these nine people are the best people to judge and weigh” such policy judgments, he asked.

Justices Barrett and Clarence Thomas questioned why the Grants Pass laws were challenged before they were enforced and if that was appropriate, as the Eighth Amendment typically restricts punishment.

Attorney Kelsi B. Corkran, representing “involuntary homeless” people who sued Grants Pass, said they challenged the package of punishments — citations, fines and criminal charges — to block the status-based unconstitutional punishment that was in effect under the city’s laws.

Justice Brett Kavanaugh cited the concern that “federal courts aren’t micromanaging homeless policy.”

“We’ve heard about how it’s more difficult to have an effective homeless policy, given the rule that’s been in effect in the 9th Circuit over the last several years,” Kavanaugh said, referencing the earlier Boise decision. In that, the 9th Circuit found in 2018 that the government can’t criminally punish people for sleeping in public if a city’s homeless population outnumbers available shelter beds.

Corkran immediately shot back, “That’s flatly wrong,” arguing that the restrictions on the Grants Pass laws don’t bar a city from being able to clear a homeless encampment.

She argued that cities have plenty of other avenues to protect public health and safety, such as the time, place and manner restrictions on where people can sleep outside, as well as laws that might ban fires or tent encampments in certain locations with adequate public notice.

But that’s not what Grants Pass has done, Corkran argued. The city’s laws essentially rose to a “24-7, citywide sleeping ban” that forces people to move or face endless fines, park exclusions and potential trespass charges.

“The state police power is broad, but it does not include the power to push the burdens of social problems like poverty on to other communities or the power to satisfy public demand by compromising individual constitutional rights,” Corkran said.

Justice Ketanji Brown Jackson asked why Oregon’s 2021 law didn’t make the Grants Pass case moot.

“It seems like the state has already precluded Grants Pass from doing the sort of thing it’s doing here, so why do we need to weigh in on that?” she asked.

Evangelis said there’s no challenge to the Grants Pass laws in state court and that both sides agreed the matter isn’t moot.

“Fine, it’s not moot,” Jackson said, pressing further, “but wouldn’t our principle be that we don’t need to reach the constitutionality of this issue if there’s another possible way of resolving it because the state has addressed it?”

Evangelis said the state’s law is a good thing, but argued that the Grants Pass public camping laws also serve an essential purpose to “protect the health and safety of everyone. It is not safe to live in encampments. It’s unsanitary.”

Corkran said the plaintiffs didn’t raise the question of mootness based on Oregon’s relatively new state law. But she added, “I certainly wouldn’t have any concerns with the Court saying as a matter of constitutional avoidance, it appears this Oregon law resolves this whole issue” and then dismisses the Grants Pass petition.

The rally outside the courthouse before the hearing drew people from New York to Oregon while more than 30 hopeful court spectators camped outside the courthouse through the night to get a seat in the public rows of the courtroom. The courtroom was full, with 37 members of the press attending.

Ed Johnson, litigation director for Oregon Law Center who filed the case against Grants Pass, sat at the front table with Corkran, who argued before the Supreme Court.

Corkran is Supreme Court director at Georgetown Law’s Institute for Constitutional Advocacy and Protection. Several of her law school students were in line outside the courthouse and attended the hearing. Other Villanova Law School students who helped do research on behalf of the homeless plaintiffs also camped out for a chance to listen to the arguments.

The Supreme Court is expected to issue a decision by the end of June.

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